The preparation and publication of annual accounts: the group exemption of article 2:403 of the Dutch Civil Code

Each legal entity is obliged to draw up annual accounts that meet the requirements of Title 9 of Book 2 of the Dutch Civil Code and to file them for public inspection with the trade register.

To avoid heavy administrative burdens, legal entities that are part of a group may under certain circumstances opt for an exemption from the requirements of Title 9 of Book 2 of the Dutch Civil Code with respect to their annual accounts. An exempt legal entity only has to prepare simplified annual accounts, whereby the balance sheet and profit and loss account only have to state the aggregate amounts of a few main categories, and in addition, such legal entity is not required to publish its annual accounts.

In order to benefit from the above exemption, the following conditions must be met:

  1. all shareholders of the exempt legal entity must give their consent to the preparation of simplified annual accounts. This consent must be given each year and a declaration of consent must be filed with the trade register;
  2. the financial information of the exempt legal entity is consolidated in consolidated accounts of such legal entity’s direct or indirect shareholder or other group company. This consolidating group company must be established in an EU or EEA Member State;
  3. these consolidated accounts of the group company must be filed with the trade register;
  4. the consolidating group company has assumed liability for the debts of the exempt legal person arising out of legal acts by means of a declaration filed with the trade register (the '403 declaration').

The 403 declaration can be used for an unlimited number of years after it has been issued.

Heussen is happy to advise on the relevant legal aspects of the 403 group exemption and assist with the drafting and filing of a 403 declaration and declaration of consent.